PrawfsBlawg

Erie

A Civ Pro student on Friday referred to the "relatively unhinged Erie choice." Best mistake I have heard in the classroom.

Scope of Pullman

A puzzle from the Fifth Circuit declining to abstain under Pullman from a constitutional challenge to a state judicial-ethics canon that might prohibit him from declining to perform same-sex weddings.

The court finds Pullman prerequisites--constitutional challenge to ambiguous challenged state law--satisfied. It declines to abstain because of the status of a pending state-court litigation in which a different judge challenged the same canon on state-law grounds. The district court abstained believed this litigation would resolve the meaning and scope of the canon; the court of appeals disagreed on that point, believing other issues might prevent the state courts from reaching the scope issue. Because the other state litigation would not definitively address the state issue in this case, the court would not rely on it.

The point of Pullman is to for the federal plaintiff to litigate his state issues in state court; the point is not to free-ride on other possibly related litigation. The status or scope of another, unrelated state-court case should not affect the court's abstention decision. If this federal plaintiff could get a state-court ruling on an ambiguous state-law issue that might obviate his federal constitutional challenge, the court should abstain.

On a stranger note: The court gets to the same place by certifying the state-law issue in the current case to the Texas Supreme Court. In other words, the court really chose certification over abstention as the mechanism in which the current federal plaintiff will resolve the ambiguous state-law issue. Which perhaps was the right move--courts have not found a good metric for when to abstain and when to certify, as the standards are (or should be) basically the same. Just for the wrong reasons.

JOTWELL: Mullenix on Steinitz on Zombie Litigation

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Maya Steinitz, Zombie Litigation: Claim Aggregation, Litigant Autonomy and Funders’ Intermeddling, __ Cornell L. Rev. __ (forthcoming, 2025), on the problems of third-party funding in aggregate litigation.

And just because:

 

 

Somin on university lawsuits

Ilya Somin argues that universities should challenge speech-based deportation of students, rather than leaving it to individual challenges (or even class actions) by the students.

Universities (especially public universities) took the lead in challenging the Muslim travel ban and other policies during Trump I. They claimed injury from not having these students as part of the community, with the associated financial and mission loss; they succeeded with various forms of third-party and association standing. The standing argument for universities now might be stronger, because they may be able to frame a form of first-party standing--the threat to their students violates universities' First Amendment rights to create an academic community and forces the university to institute certain speech policies it may not like.

Charlie Sykes interviewed Anne Applebaum and asked an interesting question: Why are institutions so hesitant to challenge Trump now compared with eight years ago. Applebaum speculated it is about January 6--everyone knows Trump has no boundaries and will resort to violence. I had a different take (although perhaps it is related): Trump did not target universities or law firms or companies. It was easy to stand-up for others (e.g., banned immigrants) when there was nothing personal on the line. Facing direct sanction, universities and firms choose to lay low and appease, hoping to get along unscathed. The fallout affects the firms as well as the people they might represent.

JOTWELL: Thomas on Jacobi & Sag on interruptions

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Tonja Jacobi & Matthew Sag, Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, 103 B.U. L. Rev. 1741 (2023), one in a series of explorations of oral argument.

"in such inferior Courts as the Congress may from time to time ordain and establish"

I expect flacks for an authoritarian administration to denigrate the power of trial courts or the administration's obligation to obey. I expect better from the head of the opposition party (who has a J.D.), but maybe I shouldn't, because the lesson of the past week is that Chuck Schumer sucks at his job--generally and in the current moment.

But for those in the cheap seats:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Inferior-court judges wield as much of the judicial power as SCOTUS and enjoy the same structural independence as SCOTUS, subject to hierarchical review within the judicial system. Impeaching lower-court judges for their decisions is as problematic as impeaching justices for their decisions. Ignoring unstayed-and-unappealed lower-court orders is as problematic as ignoring a final SCOTUS opinion (which really triggers a final district court order).

SCOTUS has original jurisidiction in an unextendable universe of four cases--"affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." That means cases must pass through lower courts--including single-judge district courts; if they do not, they never reach SCOTUS. So to reduce the threat to the judiciary to that last stage--and to say we are in crisis only if the Administration disobeys the last stage--willfully misunderstands the process.

In some ways, the current conversation follows from the common misunderstanding of Cooper. Everyone views the case as the Court demanding that everyone follow its precedent, Brown. In fact, Cooper arose from Arkansas efforts to avoid a district court judgment in the unique litigation over desegregating Little Rock schools. This might be clearer had SCOTUS written that opinion to less emphasize judicial supremacy and more to emphasis the judicial process. Instead, Cooper makes SCOTUS the center of it all--allowing Schumer stupidly and Leaviit intentionally to treat lower-court judges as unimportant and powerless.

Remedies and the Constitutional Crash

An interesting remedial angle to the attempts to litigate against the ongoing constitutional crash.

It demonstrates the limits on declaratory and injunctive relief in the face of large-scale government wrongdoing. Injunctions take time, with stays and immediate review. Some enforcement takes place in the meantime, even if it might prove invalid. That enforcement chills others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. Those who have to wait it out suffer harm--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but soft liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it. And that is before we get to DOJ's litigation misconduct. Judge Boasberg's actions show that courts will take small, measured steps and build a careful record before dropping the contempt or sanctions hammer on government attorneys. That creates more delays and more opportunities for the government to stall, with the attendant harms to rights-holders.

Damages should fill this gap, imposing liability and providing a remedy for past injuries caused by misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that interstitial unlawful behavior. This reflects the consequence of the more-or-less-death of Bivens and how difficult (if not impossible) it is to obtain damages against federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees, because they can get injunctive relief. But the lag creates its own harms. Of course, Bivens is not the only problem. Even if Congress enacted a federal equivalent to § 1983, qualified immunity would defeat most damages claim. I doubt any court would say it was clearly established on March 15 that the government could not remove people from the country under the Alien Enemies Act or that it could not detain a Green Card-holder for his expressive activities--because no Administration had previously tried.

Constitutional litigation has long flipped the remedial hierarchy, preferring equitable remedies (injunctions) to legal remedies (damages). Current events reveal some unique problems with that flip.

Procedural puzzles and Trumpian abuses

Some links and brief comments as litigation swirls around the Trump Administration's various abuses of power.

1) Sam Bray on DOJ's too-clever-by-half insistence that it did not violate the injunction barring removal of gang members under the Enemy Aliens Act because the plane had left US airspace. Bray explains that equity applies to the person, not the place.

I argued against the term "nationwide injunction" (and in favor of universal or non-particularized) because it allows this geographic point to leak in. An injunction applies to the defendant everywhere the protected person goes. So an injunction issued in the District of Columbia prohibiting enforcement of a law against the plaintiff protects the plaintiff and prohibits enforcement against him wherever he goes. A term such as "nationwide" allows DOJ to argue--however disingenuously--that the injunction does not go beyond the nation.

2) Competing takes--one from Sam, one from Steve Vladeck--on DOJ's emergency petition in the birthright citizenship case, which seeks a stay to pare back the injunction's universality.

3) A procedural question off Trump's new nonsense that the pardons of January 6 Committee members are invalid because done with an autopen: Does Liz Cheney or another person have standing to bring an EpY challenge to any prosecution or is such challenge ripe? Ordinarily the answer would be no because the prosecution and the constitutional issues are too speculative. But: 1) Trump has made it clear that he is coming for them (and under the unitary executive we need not wait for DOJ) and 2) the constitutional issue--the validity of the pardon--is obvious and present, regardless of what charges they bring.

By the way, Sam's posts appear on the new Divided Argument blog, a group blog by a group of top Fed Courts types, including Richard Re, who will be blogging there rather than here in the future. Subscribe and bookmark.

JOTWELL: Effron on Young on legal information

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Kathryne M. Young, Getting Help, 2024 Wisc. L. Rev. 1149, on the gap between providing legal assistance and providing legal advice.

Preliminary injunction does not create prevailing party

So Lackey v. Stinnie holds 7-2 (Roberts for the Court; Jackson, joined by Sotomayor, dissents).

The majority adopts a categorical rule: A plaintiff never prevails based on preliminary injunctive relief; a judicial order must establish the enduring change to the relationship with the defendant to establish prevailing-party status. A case that ends on anything other than a final judicial decree on the merits (or its equivalent, such as a consent decree) render the preliminary relief "fleeting" rather than enduring. In this case (reflecting a common sequence), the government mooted the case by repealing the challenged law after the preliminary injunction. Thus, although the PI gave the plaintiffs what they wanted from the litigation--their licenses back and the opportunity to drive--and they retain those licenses after the end of the litigation, plaintiffs do not prevail because they did not get this relief (the ability to drive) from a final court order. Problematically, the court adopted the categorical bar that had been the law in the Fourth Circuit until the en banc court below in this case overruled its precedent. The court rejected more-nuanced approaches in some lower courts, which consider the basis of the PI (was the focus on the merits or on irreparable harm) and how much the PI relief endured by the end of the case.

According to the dissent, the majority conflates the need for success when the case ends (which dictionaries define as creating prevailing-party status) with the need for a judicial ruling on the merits to end the case. If a plaintiff gets what he wants early in the case and retains it at the end of the case, it does not matter why or how the case ends. This is particularly true where the case ends as moot--whether because the government moots by ceasing the challenged conduct (as here) or because plaintiffs sought specific short-term relief  that ends when the short period lapses (e.g., protesting at the DNC on three specific dates). Plaintiffs got everything they want from litigation (the right to keep their licenses or to protest) but no longer can recover fees in either case.

The case echoes Buckhannon Bd., the Court's last major attorney's-fee case, in a number of respect. Buckhannon rejected the "catalyst theory" (allowing plaintiffs to prevail if the lawsuit prompted the government to change its challenged conduct prior to any judicial ruling); Lackey extends Buckhannon to require that the judicial ruling finally resolve the case.

    • Lackey rejects the view of every court of appeals (11) to address the issue; Buckhannon adopted the view of the one circuit (ironically, the Fourth) to reject catalyst in the face of eleven adopting it. Not sure how the results of "percolation" should affect SCOTUS--if lower courts agree on a legal question, does that suggest something about the "correct" answer to which the Justices should defer?

    • Both cases turn on the importance of a judicial order as opposed to practical relief. Buckhannon and Lackey together require a final judicial order for prevailing-party status. Both dissents argue that the point of litigation is to get something in the real world (money or the right to engage in or be free from some conduct); the judicial order is the means, not the ends.

    • Both cases involve quarrels over efficiencies. Both majorities insist that their bright-line rules limit wasteful satellite litigation over fees; both dissents insist that the majority creates perverse incentives for plaintiffs to litigate longer, seek nominal damages for no good reason, and to resist mootness or settlement to maintain the possibility of prevailing-party status by getting to a final judicial order. Both dissents insist that the majority disincentivizes attorneys from undertaking cases (§ 1988(b) seeks to encourage representation) for fear that their efforts will not reach final judgment despite their basic merits; the majority dismisses these concerns as "entirely speculative."

The outcome surprises me a bit given the ideological drift of constitutional litigation. Lackey has a liberal bent--a challenge to a state law burdening criminal defendants (mostly poor and of color). But the increasing use of § 1983 litigation (and thus of § 1988(b)) attorney's fees for conservative causes means this decision will affect the other side. An anti-abortion group hoping to display photos of aborted fetuses at a particular intersection on a given date will not be a prevailing party. See how this plays out.

Courtroom policies and constitutional substance

Following up on the efforts to recuse a judge from hearing a challenge to a trans-athlete policy because of the judge's standing courtroom practices: Judge Crews (D. Colo.) refused to recuse and refused to rescind the courtroom pronoun policy. Crews (and his courtroom policies) have not stopped plaintiffs' attorneys from misgendering the trans athlete at the heart of the case (who is not yet involved in the litigation and thus not protected by the policy). And Crews twice told counsel that he would refer to the athlete by female pronouns as a matter of courtesy and respect (as he is duty-bound to do) but this should not be confused for prejudgment and did not require plaintiffs to do the same. It seems to me we are in Rick's baseline hell here because any judicial practice will reflect the goals of one side in a case such as this--a judge who insisted on using male pronouns to describe a trans-woman athlete could be said to prejudge the matter by accepting plaintiffs' arguments about biological sex.

But then Judge Dale Ho (S.D.N.Y.) recused (paywalled) from a challenge to a minority-supporting investment fund because of his courtroom policy encouraging participation of less-experienced attorneys, including those from historically underrepresented backgrounds; lawyers from Consovoy McCarthy alleged the policies violate Equal Protection and reflect prejudgment in the case. Consovoy attorneys made the same move against another S.D.N.Y. judge, prompting her to rescind a similar policy.

As a matter of prejudgment and judicial ethics (which I do not study), are these cases distinguishable? I do not believe either reflects prejudgment; judges must be free to enact lawful policies until they cease to be lawful. A judge's lawful practices cannot be the basis for recusal once a case comes around that might challenge or be inconsistent with those practices. Otherwise, parties pushing  litigation positions would be able to pick their judge--only a judge who has never sought to advance racial minorities or to show respect for trans people in an (at-the-time) lawful manner. And we are back in baseline hell. Unless it depends on the courtroom policy--is there a difference between a "be respectful in my courtroom" policy and an "enhance the diversity of the bar" policy, in terms of what judges should be doing?

JOTWELL: Wasserman on Berman on personal jurisdiction

I have the new Courts Law essay reviewing Paul Schiff Berman, The Future of Jurisdiction, 102 Wash. U. L. Rev. ___ (forthcoming 2025). I plan to incorporate some of his insights into the course this semester.

JOTWELL: Bartholomew on Noronha on equitable awards

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Alexander J. Noronha, On Behalf of All Others Similarly Situated: Class Representation and Equitable Compensation, 122 Mich. L. Rev. 733 (2024), on the equitable origins of class-rep awards.

303 Creative, Exclusive Private Enforcement, and Blue State Revenge

My latest with Rocky Rhodes, in the Journal of Legislation. We argue that a Blue State wanting to create a real counterpart to S.B. 8 and its copycats should enact an exclusively privately enforced public accommodations law, targeting the First Amendment opt-out recognized in 303 Creative.

Abstract after the jump.

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This Article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

Craven, cowardly, and clueless

Republicans in the Idaho legislature are pursuing a resolution urging SCOTUS to overrule Obergefell. The exercise is performative bullshit. SCOTUS resolves lawsuits, not requests from random people to do things. The article quotes Tobais Wolff (Penn) as saying "the Supreme Court will no more respond to a letter from the Idaho Legislature than they would a letter from me." It also quotes one legislator emphasizing the need to make a statement about protecting rights.

The clueless part is that the legislators could make a statement that would have actual legal effect: Pass a law limiting marriage to one man and one woman (presumably a new version would specify cis-man and cis-woman) and set up a lawsuit by a couple denied a license; then they can marshall their legal brilliance to argue to the Court why it should overrule its precedent. They cannot claim a belief in judicial supremacy; the proposed resolution begins "[s]ince court rulings are not laws and only legislatures elected by the people may pass laws." Such a view of the balance between the judicial and legislative powers suggests the legislature can (and should) pass a law reflecting the views of the people of Idaho and let the legal controversy play out.

The answer is the cowardly part. They do not want the political blowback to enacting a law contradicting SCOTUS precedent. They likely fear being lumped with Massive Resistance and the authors of the Southern Manifesto--who, to their (limited) credit, offered a procedurally and substantively coherent vision of constitutional judicial review. They also likely fear the hundreds of thousands of dollars in attorney's fees they will pay for litigating two guaranteed losses in the lower courts and a likely loss in SCOTUS (which I do not believe is so anxious to overrule Obergefell, as opposed to limiting its application). But these people will not put their money or their power where their mouths are.

And so we get the craven part--a legally, procedurally, and practically meaningless performative gesture.

Pleading as press release, performative litigation, and good guys v. bad guys

I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.

I want to drill down on this because a range of ideas are floating here.

Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.

We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").

David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.

These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.

[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.

JOTWELL: Pfander on West on constitutional torts

The new Courts Law essay comes from James Pfander (Northwestern) reviewing E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. ___ (forthcoming 2025) on how reconceptualizing constitutional rights changes the process of litigating constitutional  rights. I am also thinking about how it affects disputes over offensive and defensive litigation and laws such as S.B. 8.

Hypocrisy and question-begging on standing

A few days late on this: Justice Alito (joined by Justice Thomas) dissented from denial of cert in Parents Protecting Our Children v. Eau Claire Area Sch. Dist., where lower courts found a group of anti-trans parents lacked standing to challenge trans-supportive policies. The lower courts relied on Clapper; Clapper's author, Alito, was not having it. He finished with this:

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their “ virtually unflagging obligation . . . to exercise the jurisdiction given them. ” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Alito seems to want to single-handedly prove the point that conservative justices are abandoning standing now that conservative litigants are challenging liberal policies. This is of a piece with his dissents in Murthy (the jaw-boning case) or California v. Texas (standing to challenge an unenforceable law). He was not worried about courts avoiding such contentious constitutional questions as the validity of a federal law authorizing warrantless searches. Richard Re argues that the Court is, so far, holding the line on standing. Not so Alito.

Note the question-begging dishonesty in that last sentence. The "virtually unflagging obligation" goes to abstention--when to decline exercise jurisdiction granted. Standing (for better or worse) goes to whether jurisdiction has been granted. And it should not affect how the Court understands the scope of jurisdiction--courts do not expand their interpretation of standing (and thus jurisdiction) because of the virtually unflagging obligation.

CFP: Civil Procedure Workshop X, June 2-3, Richmond Law

We are excited to announce that the 10^th Annual Civil Procedure Workshop will be hosted by the University of Richmond School of Law on June 2-June 3, 2025.

Overview

CPW X will give emerging and established civil-procedure scholars an opportunity to present their work in plenary and breakout sessions. Senior scholars will moderate the sessions and lead the commentary. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Call for Papers

We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a 1-2 page abstract by March 3, 2025. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. Papers at all stages of completion, including those likely to still be substantially incomplete at the time of the conference, are eligible.

Please submit your abstract online here.

Further Details

CPW X will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

If you have any questions, please feel free to contact Luke Norris ([email protected]) or Riley Keenan ([email protected]).

Additional information will be made available at this link.

JOTWELL: Levy on Bayefsky on judicial institutionalism

The new Courts Law essay comes from Marin Levy (Duke) reviewing Rachel Bayefsky, Judicial Institutionalism, ___ Cornell L. Rev. ___ (forthcoming 2024), on the role and need for institutionalist judges and judging.

JOTWELL: Michalski on non-adjudication

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg, No Adjudication, on how much litigation resolves without a judicial determination and without the filing of more than initial pleadings.

Attorney courage and state interference

More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.

As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.

As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?

More free speech in Free Florida

Things move fast when the Free State of Florida decides to show its true censorious colors. Following that absurd letter threatening TV stations with liability if they ran the "Caroline" ad supporting passage of an abortion-rights constitutional amendment, documents revealed that the state retained two law firms for possible litigation. On Wednesday, the Floridians Protecting Freedom, sponsor of the ballot initiative and the ad, brought a § 1983/EpY action against the surgeon general and the general counsel of the department of health (the author of the letter). On Thursday, the court granted a TRO enjoining the SG from taking further actions to stop people from running the ad. Also on Thursday, reports leaked that the attorney, John Wilson, quit, saying "A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Of course that burst of conscience 1) came after he wrote the letters and 2) did not stop him from getting sued.

Some thoughts on the suit and the decision:

• The First Amendment violation here is so obvious as to be funny. In his Murthy dissent, Justice Alito complained that the comparative outcomes in Murthy (finding no standing) and Vullo (finding a plausible violation) showed "[i]f a coercive campaign is carried out with
enough sophistication, it may get by. That is not a message this Court should send." Ron DeSantis and his cronies do nothing with subtlety or sophistication.

• The case has an interesting standing wrinkle. The state directed the challenged letter to the tv stations, but the ad sponsors filed suit and sought the injunction. The plaintiffs offered two theories of standing: 1) although sent to the tv stations, the letter threatened action against everyone involved with the ad and 2) one station stopped running the ad. The court adopted the first theory and did not reach the second.

    Is that right? The letter expressed views about the unlawfulness of running the ad. But can a threat referencing wrongdoing and intent to prosecute directed to specific people create an imminent threat of enforcement against everyone not named in that letter who may engage in related-but-different conduct? In other words, the letter expresses intent to come after one tv station but standing seems clear for another tv station that might run the ad. But the ad sponsor is differently situated.

    I also wonder if the court adopted that theory to avoid a Clapper/chain-of-inferences problem, in that the injury to the plaintiff depends on the action of the tv stations, not the action of the defendant government officials. The chain here is much shorter, so it should not be a problem. Or maybe the court was worried about Murthy and the possibility that the station would have declined the ad without

• Naturally, the court creates scope-of-injunction problems. The injunction enjoins the SG from "taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements or engaging in other speech protected under the First Amendment."

    The problem goes to whether the remedy must match the theory of standing (or the theory of the constitutional violation). The court accepted the theory that the letter threatened FPF with prosecution, an injury remedied by an injunction prohibiting the state from pursuing enforcement actions against FPF over the ad. An injunction stopping the state from threatening or acting against the tv stations remedies a very different injury to FPF, not one the court considered or found.

• The ad features a woman with terminal brain cancer who sought a 20-week abortion that would have allowed her to receive life-extending (not live-saving) treatment that would give her more time with her husband and extant child; it claims she could not terminate that pregnancy under current law, while the state (in the letter Wilson wrote and sent before discovering his conscience) insists she could lawfully obtain an abortion in that circumstance. What is "true" or "false" in questions of legal interpretation and legal meaning and how can a legal argument be false--if I interpret the law differently from the SG, am I "lying?" Does the statement become true if, even if a doctor could not be convicted for performing that abortion, some crazy prosecutor might try or no doctor will take the risk of performing the procedure, forcing the woman to leave the state? To paraphrase Henry Monaghan, if such a technical legal question qualifies "as a 'fact,' it is nevertheless a very different kind of fact from the bigness of Cyrano's nose."

Limits of private enforcement in a mixed scheme

In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.

And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's

A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.

So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.

We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.

Vagaries of public enforcement

As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.

Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).

The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.

In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.

JOTWELL: Coleman on Macfarlane on case assignment

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Katherine A. Macfarlane, Constitutional Case Management, 102 N.C. L. Rev. 977 (2004), on the constitutional implications of local rules and practices on case assignment.

Call for Nominations: Best Untenured Article

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2025 AALS Annual Meeting. 

 

The purpose of the award program is to recognize outstanding scholarship in the field of Federal Courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2024 (date of actual publication deter-mines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2024), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Professor Marin Levy at Duke University School of Law ([email protected]). 

 

Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2024. Nominations will be reviewed by a prize committee comprised of Professors Payvand Ahdout (University of Virginia School of Law), Kellen Funk (Columbia Law School), Tom Lee (Fordham School of Law), Marin K. Levy (Duke University School of Law), and Richard Re (University of Virginia School of Law), with the result announced at the Federal Courts Section program at the 2025 AALS Annual Meeting.

 

JOTWELL: Erbsen on stipulated secrecy

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, & Aaron Schaffer-Neitz, Secrecy by Stipulation, 74 Duke L.J. __ (forthcoming, 2024), on how party agreement prompts courts to grant protective orders without good cause, undermining public access to the courts.

Fifth Circuit makes a Heck-of-a-mess

I wrote last December about Wilson v. Midland Cty., a § 1983 action by a woman convicted (and given a suspended sentence) two decades ago by a prosecutor who was moonlighting as a clerk for the judge who presided over her trial. The case wades into a circuit split over whether a person seeking damages arising from constitutional violations within a criminal prosecution must show favorable termination under Heck when she is no longer in custody (and thus able to get habeas relief in federal court).

At the time, I wondered whether the plaintiff would seek rehearing on en banc or go straight to SCOTUS; she chose the former. Not only did she lose, but the Fifth Circuit made a hash of Heck.

Judge Oldham wrote for a plurality (9/18) to say that Heck is not about the line between two statutes (§ 1983 and § 2254), as everyone has long understood. Instead, it is about the requirements of common law torts. Citing the Court's most recent decision--which defined favorable termination as an element of a malicious-prosecution claim and which the Court did not decide as a Heck case--the plurality holds that favorable termination is an element of all § 1983 actions challenging violations around a criminal conviction. The unavailability of federal habeas was of no moment, so long as state mechanisms remained open to her. Judge Haynes concurred in part for two, approving of the disposition of the case--dismiss without prejudice so plaintiff can pursue state favorable-termination mechanisms. Judge Willett--who wrote the panel majority while expressing outrage over the result--dissented in even higher dudgeon. Not only does he object to applying Heck to non-prisoners (the result, he argues, of following pure dicta), be he must take on Oldham's nonsense.

Haynes' concurrence actually illustrates the problem with the outcome (and the plurality's analysis). Insisting that he does not argue that Heck imposes a state exhaustion requirement, he argues that Heck includes as a favorable-termination mechanism "the ability to go to the state," includng a state appellate or post-conviction court. That is, he rejects the idea that federal habeas represents the only mechanism for obtaining favorable termination, since Heck itself identifies state mechanisms for obtaining favorable termination.

But that gets everything backwards. The issue is not the availability of state mechanisms to undo a conviction. The issue is what happens when those state mechanisms fail; the text, history, and purpose of § 1983 and § 2254 show that the states cannot have the last word on the validity of the conviction and the rights-holder must have a federal forum at some point. The question is which vehicle. A person-in-custody uses § 2254, which requires state exhaustion anyway. But habeas is not an option for a person not in custody. Under the Fifth Circuit approach, that rights-holder is stuck with the state result, with no option for federal reconsideration. That functions as an exhaustion requirement. And it is inconsistent with what § 1983 is supposed to do.

I cannot believe the Court will not take this case. Lord knows how badly they will botch it.

Procedure Matters, Episode LIX

Kind of a weird one but it illustrates how the rules operate and interact in confusing ways.

Plaintiff brings False Claims Act qui tam action; defendant answers but does not raise the constitutional invalidity of qui tam actions as an affirmative defense; defendant moves for judgment on the pleadings based on constitutional invalidity (qui tam actions violate Article II). The court denied the motion because defendant did not raise the affirmative defense in the answer, so it is not part of the pleadings for FRCP 12(c) purposes. Defendant had to amend its Answer to add the constitutional defense, which might be tricky since the court had set a scheduling order (which heightens requirements for amending).

This is a plausible outcome. But I think the court errs (or at least fails to perform proper analysis) in two respects. Both go to the court's failure to actually decide whether qui tam actions violate the Constitution.

First, the constitutional defense should be a built-in defense--the constitutional validity of the law sued upon should be built into the complaint's allegations of a violation of that law. Defendant could have responded to the complaint with a 12(b)(6) motion raising the constitutional defense, which would have forced the court to decide whether the Constitution permits qui tam actions. If so, a defendant should be able to raise a built-in defense on a 12(c); even if not pleaded in the answer, the affirmative defense is built into a complaint that mentions and includes allegations about the FCA. For comparison, a defendant can raise the statute of limitations on a 12(b)(6) if the complaint includes dates showing the claim is untimely; if the defendant answers without an SL defense and moves under 12(c), the court can still look at the complaint, see that the complaint is untimely, and grant the motion, even if the defendant did not plead SL.

Second, before deciding the defense must be in the answer, the court waves away the constitutional analysis. The court says this (and this is all it says):

Under the present state of the law, Defendants’ separation-of-powers challenge to the qui tam provisions of the False Claims Act is insufficient on its own to demonstrate that Relators’ complaint is implausible. Further, even if “[t]he FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone,”and even if it is time to revisit the matter, it is equally true that “lower federal courts should not ‘pass on questions of constitutionality . . . unless such adjudication is unavoidable’ . . . .”

That is a cop-out. If qui tam actions are constitutionally invalid, they do render the complaint implausible--no reasonable inference from the facts taken as true shows plaintiff can recover, given the constitutional defects in the FCA. But the court must decide the open constitutional question to make that plausibility determination. It cannot stop with pointing out that other (non-binding) precedent has gone the other way and thus does not outright preclude the claim or make the claim frivolous.

Musk suit proceeds v. Media Matters

So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.

On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.

On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).

While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.

12(b)(6), summary judgment, and conflicting video

I think the Fourth Circuit reaches  the right place--further proceedings required. A trial court can consider a video on a 12(b)(6) if "(1) the video is 'integral' to the complaint and its authenticity is not challenged, but (2) only to the extent that the video 'clearly depicts a set of facts contrary to those alleged in the complaint,' or 'blatantly contradicts' the plaintiff’s allegations, rendering the plaintiff’s allegations implausible." The district court should have denied dismissal because the video did not blatantly contradict the allegations in the complaint.

But I think it gets there via two mistakes, sounding in the general problem of conflating 12(b)(6) and summary judgment, especially in civil rights actions: 1) Expanding what the court can look at on 12(b)(6) and 2) conflating 12(b)(6) and summary judgment when dealing with conflicting information.

1) A court on a 12(b)(6) is limited to the allegations within the four corners of the complaint plus documents attached as exhibits. FRCP 10(c), 12(d). Courts have extended that plus to include documents that the complaint mentions or relies on, which makes sense on a rule of completeness--if the complaint refers to something (e.g., a contract or a magazine article), a rule of completeness dictates that the court treat the entire thing as part of the complaint. Otherwise a plaintiff could selectively and inaccurately quote pieces of a broader thing to create a false impression. Courts have further extended this to videos.

The 4th Circuit does not explain what "integral" to the claim means--whether it includes complaints that identify the video as a source or otherwise expressly rely on the video or whether it includes any set of facts describing events for which publicly available video may be found. If video cases are not to subsume 12(b)(6), it should not extend as far as the latter. That is, if the complaint includes factual allegations X, Y, and Z and there happens to be video evidence of those facts that the complaint does not mention, discuss, or rely upon, the video should not be treated as part of the complaint.

The court does not explain which side the case falls. The complaint alleged a bunch of facts; defendant's 12(b)(6) introduced the video, emphasizing that it was "publicly available" and "integral to" and "apparently relied on" in the complaint. Publicly available should not matter (unless it is part of a public record and a subject of judicial notice). And I do not know how the complaint "apparently relie[s]" on the video--either it does or does not. Unfortunately, plaintiff did not object to the court considering the video and used the video to argue it meaning in opposing the motion, effectively waiving the 12(d) argument. The court therefore did not resolve the "not entirely clear" question of whether the video qualifies as integral to this complaint.

2) If the video is part of the complaint, I do not think the "blatantly contradicted" standard should apply. Blatant contradiction comes from Scott v. Harris, where the Court disregarded the plaintiff's deposition testimony of what happened during a high-speed chase (specifically whether he was a threat to persons and property) by watching video of the chase and concluding that the video was capable of one reasonable interpretation. The Court therefore need not accept plaintiff's version of events or draw reasonable inferences for the non-movant plaintiff ("I was driving fast but safely") when his evidence was "blatantly contradicted" by the video whose one true meaning ("he was a threat'") the Court can divine by watching.

Putting aside the correctness of Scott and the idea that the video shows one obvious thing rather than being subject to interpretation, the approach makes some sense on summary judgment. Opposing parties offering competing evidence, stories, and versions of events; the court decides whether the evidence each offers sufficiently conflicts as to show a factual dispute requiring jury resolution. "Blatant contradiction" gets us to the place of the defendant offering the video, the plaintiff offering no evidence (as is his burden of production), leaving no disputed facts requiring jury resolution. I do not agree with the standard, but it is consistent with the inquiry on summary judgment.

But 12(b)(6) is supposed to be different. The court hears one side--what the plaintiff offers; it hears no facts or evidence from the defendant. The court takes everything the plaintiff alleges as true and considers whether the plaintiff can win if everything he says is true. Where the complaint contains adverse allegations or facts, the court can consider those and rule against the plaintiff--we say plaintiff has pleaded herself out of court. Where the complaint includes contradictory allegations, the court need not resolve that conflict or decide which is true; it accepts everything true and decides if the plaintiff loses under either of those sets of facts. Consider Craig v. Rich Township High School. A fired school counsleor alleged that he published his book (the speech for which he was fired) outside of work , but the book (which he attached to the complaint) included content connecting to his counselor job. The court could consider that fact in the Pickering balance on a 12(b)(6) because the facts showing connectedness were in the complaint. The court did not disregard contrary facts; it took all facts as true, some of which showed why the plaintiff lost under controlling law. Or imagine a hypo I use in class--a Black non-attorney brings a race-discrimination claim against the law firm that denied him a job, with allegations that he was told he was not hired because he is not an attorney and because he is Black. The court would not unpack or reconcile the facts; it would take both allegations as true, with one fact (not hired because not an attorney) defeating the claim.

So how should this case have come out? Where (as it seems to have been in this case) there is ambiguity whether the complaint relies on the video, the court should treat it as not having relied and not treat the video as part of the complaint. The court therefore should have either refused to look at the video and denied the 12(b)(6) or converted  to summary judgment; the latter moves allows the court to consider whether the plaintiff's testimony is "blatantly contradicted" by the video as a competing piece of evidence. But if the video is clearly part of the complaint, then the court should review the video and decide if it plausibly shows a violation, without regard to other allegations in the complaint. If the video defeats the claim, we would say the plaintiff pleaded herself out of court by including adverse facts for the court to take as true. Blatant contradiction never comes up, because the plaintiff is on the hook for the effects of all the facts she includes in the complaint.

A civ pro puzzle

Something I was thinking about while listening to several papers on personal jurisdiction at SEALS last week. It shows how the analysis has shift under us:

Imagine the facts of World Wide Volkswagen in 2024: Defective car sold in New York by two New York companies (distributor World Wide and dealer Seaway) and two non-New York companies (Audi from Germany and VWA from New Jersey), accident occurs in OK.

Before 2011, we mostly agreed on the following:

    1) No jurisdiction over WW and Seaway in OK

    2) General "doing business" jurisdiction over Audi and VWA in OK (although this was the subject of the Twitchell/Brilmayer debate)

    3) General jurisdiction over all defendants in New York--Audi and VWA on "doing business" and WW and Seaway because they are incorporated there.

In 2024, I think we have the following:

    1) No jurisdiction over WW and Seaway in OK

    2) Specific jurisdiction over Audi and VWA in OK under Ford, because they serve the OK market for the same cars (although not the car in the accident). Not general jurisdiction because neither is at home and Daimler/Good Year reject doing business.

    3) General jurisdiction over WW and Seaway in NY because each is "at home" there.

    4) Specific jurisdiction over Audi and VWA, although the theory depends on where Audi and VWA designed, manufactured, and sold the car to World Wide for distribution:

        • If any of that happened in New York, then specific jurisdiction because the case "arose" in New York because something about the defective product occurred there.

        • If all of those things happened outside New York (i.e., Audi sold the car to WW in New Jersey), specific jurisdiction would require the "related to" analysis of Ford--they serve the NY market for the same cars as the one at issue in the case, even if their NY activities did not involve the car at issue.

More on the continued usefulness of Younger

A third post on the 11th Circuit and rethinking Younger:

The Volokh Conspiracy's weekly Short Circuit roundup includes the case, along with a link to an Institute for Justice amicus brief. IJ offers a slightly different argument than Judge Rosenbaum for rethinking Younger. Pre-enforcement offensive litigation has expanded since the 1970s when the Court decided Younger and its early progeny, because the Court has developed a greater willingness, especially in First Amendment cases, to find the threat of prosecution sufficiently imminent. In this case, that means a "phonebook's worth" of similarly situated PACs and organizations could sue Georgia in a pre-enforcement challenge to these laws. Abstention in this case therefore does not serve Younger's stated purposes: Someone else can bring the federal court into the mix via pre-enforcement action, leaving state courts and agencies no room to operate, just not the plaintiffs with the most concrete injuries (the ones facing actual rather than threatened enforcement).

An interesting argument, although it might prove too much. Constitutional litigation is atomized, with different cases challenging a particular law as to different rights-holders. So there is nothing inconsistent if some cases involving some rights-holders must remain in state court while other cases involving other rights-holders can be in federal district court. Maybe a case such as this one, involving general campaign-finance regulations, is different.

JOTWELL: Bookman on Dickinson on state courts and democracy

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Gerald S. Dickinson, Judicial Laboratories, ___ U. Pa. J. Const. L. ___ (forthcoming 2025), exploring state courts' unique powers and unique roles in preserving and promoting democracy.

More on Younger--Exhaustion and the limits of defensive litigation

I am thinking through some points in my post about 11th Circuit Judge Robin Rosenbaum's call for rethinking the scope of Younger, at least in electoral speech cases.

Rosenbaum argues that "Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights." This is a bit nit-picky, because I agree with her basic criticism. But it is inaccurate to say Younger imposes an exhaustion requirement. An exhaustion delays federal litigation by requiring the plaintiff to pursue other procedures before going to federal court. But the plaintiff should get to federal district court eventually. On the other hand, when the federal court abstains under Younger, that plaintiff will never return to federal district court in a § 1983/EpY action. The rights-holder remains in state administrative and judicial proceedings, with the possibility of a federal forum through SCOTUS review of the state's highest court. Rather than creating exhaustion, Younger limits offensive pre-enforcement § 1983/EpY litigation and compels defensive litigation on important free speech issues. Still potentially problematic, depending on one's views of the lines between offensive and defensive litigation. But not as inconsistent with the text and purpose of § 1983.

The key to Rosenbaum's argument is an objection to Younger's application to state administrative proceedings (at least in First Amendment case), which delay access to state courts. She identifies two arguable problems. First, while Younger perhaps fairly presumes parity between state and federal courts in willingness to vindicate federal rights, that presumption should not apply to state administrative agencies, even with eventual state judicial review. Second, delaying access to state court may delay the first meaningful opportunity to raise federal issues--a rights-holder has an adequate opportunity so long as he can raise issues in some state proceeding, even if it does not come until several steps down the line. That is, if the PAC cannot raise First Amendment issues before the hearing board, it is enough that it can appeal the board's decision to a state appellate court and raise the First Amendment there--regardless of how long it takes to get to that second level of review.

On the other hand, the upshot of Younger is to push rights-holders out of federal district court and into state proceedings that must run their (state-determined) multi-level course. It is not clear why the first level must be judicial rather than administrative. Nor is it clear why the opportunity to raise federal issues must come at the first stage of the multi-level process, if that process must run its course before those rights can be vindicated. That is, why does it matter whether the rights-holder can raise and prevail on his federal rights at the first stage if the state will appeal that decision in any event and force completion of those proceedings.

The answer to that goes to preliminary relief, available in offensive federal litigation but not in defensive state litigation. A rights holder (such as the PACs in the Georgia case) can obtain a preliminary injunction in federal court, allowing it to engage in political speech pending resolution of the constitutional questions. From a defensive posture, especially within an administrative process, the rights-holder must remain silent and ride out the proceeding. That, ultimately, becomes the real issue with Younger's push into defensive litigation.

Rethinking Younger

Interesting Younger case from the 11th Circuit. The Georgia AG pursued a state administrative action against a PAC associated with Stacey Abrams for failing to register and file various reports. The state commission found reasonable grounds and referred the case to the AG, which referred the matter to the state administrative hearing body. Between those events, the PACs filed a § 1983 action to enjoin the state proceedings. The court held that the district court should have abstained from the federal action.

Judge Newsom wrote another Fed Courts treatise for the panel. Although the PACs filed the federal action before the hearing body received the referral to commence its proceeding, the court applied the piece of Younger under which the court must abstain if the state proceeding commences after the federal proceeding but before any "proceedings of substance on the merits have taken place in federal court." The plaintiffs had filed a complaint and a motion for a preliminary injunction and the court had handled some case-management motions. But the court had not ruled on the PI motion or otherwise engaged with the merits in the few weeks before the state proceeding commenced.* And the fact that the state conducted a thorough multi-year investigation of the PACs undermined the suggestion that the case falls within the bad-faith exception.

[*] The court rejected the district court's reliance on its "experience managing cases" in defining the point at which the state action is too late.

Judge Rosenbaum concurs to call on the courts to "reconsider just how far Younger should extend." Rosenbaum fears Younger in a case involving core political and electoral speech; that speech has achieved greater protection than it had at the time of Younger. Whatever the merits of abstention in 1970s actions involving communists, nude dancing, and "Deep Throat" (speech which the Burger Court was backing away from protecting), Citizens United and other recent campaign-finance cases vault such speech into a unique First Amendment core demanding the "strongest protection." (A cute rhetorical move in a case in which a Republican AG was going after a Democratic PAC). She complains that two of the Middlesex factors--state interest and adequate opportunity to raise federal issues--invariably favor abstention and the exceptions are too narrow to offer help. This imposes an exhaustion requirement for those wishing to engage in core political speech during and around an election. And she identifies the "Goldilocks" problem in Younger--plaintiffs must hit the sweet spot between state enforcement being sufficiently imminent to warrant standing but before that state enforcement has begun.

Recent criticisms of Younger--especially in the work of Fred Smith (Emory)--focus on efforts to challenge proceedings within the criminal justice system, such as bail or the corrupt mess in municipal courts in Ferguson and elsewhere. The argument is that federal courts should not defer to broken state systems that the federal action challenges. Rosenbaum focuses on one area of substantive law that abstention disparately effects, in a way that undermines the substantive purposes of that law.

More on collateral order review of presidential immunity

The latest episode of Divided Argument with Will Baude and Dan Epps explores Trump. Baude praises Barrett's conception of presidential immunity  as an as-applied constitutional challenge to the law. So conceived, however, Baude questions Barrett's conclusion that denial of the defense is immediately reviewable. Immunities receive immediate review, as they protect the person from having to stand trial or stay in litigation for too long. Constitutional defenses--e.g., a separation-of-powers defense to the CFPB (Barrett cites Seila Law as an example) or a First Amendment defense to a flag-burning law--do not, as they protect the person from liability. I want to unpack what I wrote about this.

COD appealability should not turn on labeling something as "immunity" or as a "right not to stand trial." Barrett's point is that immunity is never a distinct concept; it is shorthand for the argument that a law does not apply to the defendant's conduct.* And it is not obvious what makes something a right not to stand trial as opposed to a defense to liability, beyond the label--every defense can be characterized as one or the other.  There is no obvious reason that double jeopardy and qualified immunity are immunities according a right not to stand trial while preclusion and the FTCA judgment bar are defenses to liability.

[*] Justice Alito has said the same about MLB's antitrust immunity--he describes it as a judicially interpreted exclusion of MLB from the scope of antitrust laws and the application of those laws to MLB's conduct

Justice Souter tried to wrangle this issue in two unanimous COD opinions--Will (FTCA judgment bar) and Digital Equipment (private covenant not to sue). Reviewability should turn on the systemic import of the interests sought to be vindicated by immediate review and that would be lost by "rigorous application of a final judgment requirement." Thus, "it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later." This analysis considers the source of the asserted right (Constitution, statute, common law, contract) and who and what the right protects (individual or systemic interests). Unfortunately, Souter's approach has been lost in favor of simple labels.

Back to Barrett and presidential immunity. Her conception of a constitutional defense to a prosecution places presidential immunity on the same footing as the separation of powers and First Amendment defenses above. So why is the first immediately reviewable and the other two not? She never explains. Souter's considerations about underlying interests provide a way out. Although all derive from the Constitution, the latter two (and certainly the third) protect individual liberty interests; the first protects broad systemic interests of the presidency and the ability of the President to act within the constitutional system. That distinction may be wrong. Separation of powers in Seila Law serves structural interests of preserving the President's removal power; one could argue individual liberties serve structural interests of limiting government power. Maybe Barrett's position, taken seriously, explodes the COD or forcse the Court to make absurd distinctions to ensure COD remains a "small class of claims."

But Barrett's position about presidential immunity is not necessarily wrong or inconsistent with COD--if we accept Souter's position that COD turns on the underlying interests and policies at issue and begin the analysis there.

Questioning prosecutorial immunity

Justice Sotomayor respecting (although not dissenting from) denial of cert in Price v. Montgomery County questions prosecutorial immunity--its origins (including noting Alex Reinert's article that Congress abrogated all common law immunities when it enacted § 1983); the misalignment of its scope compared with its policy goals; and the inadequacy of alternative means of remedying prosecutorial misconduct. She does not argue the Court should have granted cert. She argues that the cert denial should not be read as tolerance of the prosecutor's conduct (the Court denies cert for many reason); that the Court may need to step in; and that lower courts must keep immunity with "'quite sparing'" bounds.

Jurisdictionality and presidential immunity

On top of everything else that was bad in Trump, the majority and Justice Sotomayor use language that could be read to suggest that this immunity is a limit on the court's adjudicative jurisdiction rather than a defeat on the merits.

Discussing the first bucket of presidential conduct (conclusive and preclusive), Roberts quotes Youngstown that this bucket "'disables the Congress from acting upon the subject'" and Marbury that "the courts have 'no power to control [the President's] discretion'" and that discretion "cannot be subject to further judicial examination." He repeatedly speaks in the same breath of what Congress and the courts cannot do--"Congress cannot act on, and courts cannot examine, the President’s actions;" Congress "may not criminalize the President's actions . . . Neither may courts adjudicate a criminal prosecution;" or the removal power "may not be regulated by Congress or reviewed by the courts." Justice Sotomayor does the same in arguing against immunity, as by insisting that "'common tribunals of justice should be at liberty to entertain jurisdiction of the offence'"  or stating that "'judicial action is needed" such that "the exercise of jurisdiction is warranted.'"

To be fair, some of this comes from quoting old sources (Marbury and Story's Commentaries) or cases from before the Court grew more careful about using the word jurisdiction or speaking about courts exercising judicial power (Nixon v. Fitzgerald). But it would be unfortunate if the language causes courts (such as Judge Chutkin and the DC Circuit on remand) to backslide. Trump recognizes a disability on Congress and its legislative (or prescriptive) jurisdiction--Congress cannot enact criminal statutes that regulate certain presidential conduct. It is not a limit on the court's adjudicative authority, except in dictating how the courts must resolve any future attempt to prosecute a president and likely dismiss such a prosecution, if attempted.

Justice Barrett's distinct framing of immunity--as a challenge to the constitutional validity of the statute as applied to the President's conduct--also understands immunity as merits rather than jurisdictional limitation. Where the would-be statute of conviction is constitutionally invalid as-applied, the court is not stripped of adjudicative jurisdiction; it rejects the prosecution on the merits due to a defect in the congressionally enacted substantive law.

The penumbra of Trump v. US

I don't have a lot to add to the discourse over presidential immunity from people who know more about this. So let me highlight some incidental points from reading it.

• The majority repeatedly suggests that "speaking to and on behalf of" the public and on matters of public concern is a non-core/official function. This might affect future applications of Lindke and when public officials can block the public from web and social-media sites. To act under color, an official must possess actual authority to speak on the government's behalf. I argued that Knight Foundation (holding that Trump and his aides acted under color in blocking readers from his Twitter feed) would come out differently, because the President lacks formal speaking authority about much of the stuff on social media. But this case suggests I may have been wrong about that--in part because the majority cites Lindke to support this broad presidential power to speak to the public. I wonder if that power to speak holds for the "chief executive" of other governments (e.g., the chairman of the county legislature). If so, Lindke may not be as narrow as I thought.

• It seems to me that Justices Barrett and Jackson take a similar approach to criminal law. Both reject the idea of of "immunity" in favor of a defense to prosecution under the statute. Jackson argues immunity lifts someone from the obligations of the law, as opposed to an individual defense to a prosecution under a particular statute. While agreeing there are limits on prosecuting a former president, she sees that immunity at the statutory level--does the particular statute reach official acts and would allowing prosecution pose a danger of intrusion on presidential authority and function. This sounds similar to a defense as Jackson defines one--it is a constitutional defense to the application of that statute to the president and his conduct.

• Barrett makes explicit what is implicit in the majority--a trial court decision allowing the prosecution to proceed is subject to immediate appeal. The Article II defense is separate from the merits of the criminal charge and making him wait to challenge the decision would undermine the executive authority and affect the President's decisions in office. This has two interesting consequences for the collateral order doctrine.

First, Midland Asphalt v. US says that collateral-order immunity in criminal cases applies to "explicit statutory or constitutional guarantees that trial trial will not occur;" that includes arguments over excessive bail, double jeopardy, and Speech-or-Debate immunity. Lower courts have applied Midland to deny immediate review of denial of a defense of judicial immunity in a criminal case--although that issue is immediately reviewable in a civil action--because no constitutional or statutory provision creates that immunity. The majority makes clear that presidential immunity is atextual, but Barrett does not attempt to connect her argument to Midland's seemingly off-hand dicta. Maybe that means Midland does not limit COD to explicit rights (as suggested in Sell v. US, allowing COD review of an order to involuntarily medicate a defendant to render him competent).

Second, if what we label presidential immunity is an as-applied constitutional defense, it seems to me that COD should apply to other as-applied constitutional defenses to prosecution, such as the First Amendment. It rests on the same idea--the argument that Congress cannot criminalize the alleged conduct (because of the First Amendment rather than Article II, but still) is separate from and collateral to the merits of the prosecution (whether the defendant violated the statute). I imagine it turns on unreviewability on appeal from final judgment, which considers the broad public policy and interests lost by delaying review. The individual importance of the defendant's First Amendment rights differs from the structural importance of presidential independence and authority.

• The majority pretty obviously believes  that everything Trump is alleged to have done--speaking with cabinet officials, speaking with state officials, speaking to the public about the electoral process and how it violated federal law, speaking to the VP--is official conduct. That the President has no role to play in state selection of electors or in the electoral counting is of no matter, because everything that happens in the country on every level is a matter of presidential concern (because he may be asked about it) and thus within his official functions. Other than lying about having sex with an intern and maybe shooting someone himself on Fifth Avenue (as opposed to ordering Seal Team 6 to do it), I am not sure what the President does that is not official. Although it does not conclusively say so, the majority opinion places a thumb on the scale on remand or shows its hand when the case inevitably (if Trump loses the election) returns to SCOTUS.

• I continue to look for a good explanation for why this immunity, once recognized, should not include an evidentiary component. If Speech-or-Debate immunity prevents the prosecution in a bribery case from offering evidence of a legislative act (e.g., a floor speech or vote), it seems to me that this presidential immunity prevents the prosecution in a bribery case from offering evidence of an official presidential act (e.g., granting a pardon or firing his attorney general or urging a state official to do something). I am not arguing that either situation is normatively good or correct. But if both immunities exist (as Barrett believes), why should they have different scopes? Someone please help me with this.

Thoughts on NetChoice

I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.

Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.

• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.

• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.

• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.

• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.

• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.

• Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.

• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).

• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.

No standing in jawboning case (Updated)

Murthy v. Missouri--6-3, per Barrett, finding that any injuries were not fairly traceable to the government defendants; Alito dissents for Thomas and Gorsuch.

• The decision limits these massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims--a record of undifferentiated "stuff that looks bad" is not sufficient to get a broad injunction stopping the government from engaging in future conduct.  Instead, plaintiffs must show "a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." These plaintiffs encountered two further problems--1) any (questionable) past injuries were merely evidentiary on claims for prospective relief but could not themselves establish standing; 2) they needed to link the government defendants' actions to those of the non-party social-media sites, a longer chain of causation. As Jonathan Adler puts it, the Court's message to litigants is "do the work" if you want to push aggressive legal claims.

• The decision will have cross-ideological effects, as liberal plaintiffs must similarly tailor their lawsuits. Of course, courts have hamstrung liberal plaintiffs for years, so this is nothing new for them.

• The case illustrates why standing makes no sense independent of the merits. Even for the one plaintiff (Jill Hines, a medical commentator) able to "eke[]" out a showing of traceability, the challenged conduct does not rise to the level of coercion that would violate the First Amendment. So talking about whether she is suffering an "injury" traceable to not-unlawful conduct as a basis to enjoin not-unlawful conduct seems like a waste of time. The essence of this decision is the plaintiffs sued the wrong people, which would be a merits decision in, for example, a tort claim. It should not be different in a constitutional action.

    Update: Michael Dorf argues that the majority hides within the standing analysis "a view on the merits--namely this: wherever the line between permissible jawboning and impermissible coercion lies, the sorts of actions taken by the Biden administration fall on the permissible side." But by framing this as standing, it leaves the Court room to find coercion in future jawboning efforts that go farther than this does.

    But this case and Michael's hypothetical future case both address the merits, distinguishable only by the facts and the constitutional line. Why is it not better for the Court to be honest about that, rather than disguising a determination that no rights were (or presently are) violated as the absence of jurisdiction.

    I wonder if the answer to the incoherence of standing is Thayerian judicial review. Courts will reach the merits more often, so review should be more deferential. Have to give that some thought.

• The Court recognized the standing of Louisiana and Missouri as nonsense. But here are the arguments the states tried to make: 1) States suffer an injury when sites moderated posts from state legislators; and 2) States suffer a sovereign injury when the federal government prevents their citizens from speaking to them and prevents them from hearing from their citizens. The latter is prohibited parens patriae in disguise. But it seems hard to square both arguments with the positions states and state officials took in Lindke and O'Connor-Ratcliff about the power of state officials to block citizens from social-media pages. Lindke made clear that officials do not want to hear from their citizens all that much. And under Lindke, which required the defendant to have the legal power and obligation to speak for the government, no legislator will be subject to suit because no individual legislator possesses that power or obligation. It seems hard to square the argument that states are injured if legislators cannot speak on social media with legislators are not sufficiently connected to the state when their blocking readers on social media.

• Although spread across two sittings, three cases--Murthy, NetChoice, and Vullo--danced around similar issues about the extent to which government can affect or influence one actor as it relates to the speech of others. We have two and await NetChoice. Alito's dissent linked them: He argued that the "censorship" (his word) here was as dangerous, if more subtle, than the action declared invalid in Vullo; and he argued that social media sites are more susceptible to government coercion because of their dependence on § 230 and susceptibility to antitrust suits. Might the latter point hint that the Court will declare the state laws in NetChoice invalid--with Alito placing his marker for a dissent arguing it is inconsistent to limit state power over site moderation to the detriment of particular speakers while leaving the federal government free to (indirectly) run roughshod over the same group of speakers.

• Will this bring the Fifth Circuit to heel--the second time in less than a month the Court has reversed, on standing grounds, an overbroad universal injunction in a conservative constitutional challenge to a Democratic administration, forum-shopped into the Fifth Circuit? I doubt it. (Note: Adler adds California v. Texas as another example of the Fifth Circuit ignoring traceability problems to pass on the invalidity of federal law).

Fifth Circuit overrules Ex parte Young

Exaggerating only slightly in Mi Familia Vota v. Ogg. Groups brought an EpY challenge to Texas's bullshit post-2020 "election integrity" law, including through some criminal prohibitions. They initially sued the attorney general, but the Texas Supreme Court held that the power to bring criminal charges rested with local prosecutors, not the AG. So plaintiffs amended to add the DA of Harris County (includes Houston). But the Fifth Circuit held that the DA does not fall within EpY (and thus has 11th Amendment immunity from the § 1983--some statutory claims remain) because: 1) Ogg has general discretion to bring criminal charges and no specific obligation to enforce the challenged statute; 2) her specific duty is to do justice, not to enforce criminal laws through convictions; 3) Ogg has never enforced the challenged law (the lawsuit was filed six days after it took effect) and has agreed not to enforce during litigation.

If not making EpY actions impossible, it offers state officials a roadmap for how to get out of it.

• The court requires that every provision impose a duty on a particular officer to enforce that provision. The DA's general obligation to enforce "criminal laws" is insufficient. But most states do not legislate that specifically. Worse, Texas law generally obligates DAs to "see that justice is done," which is not a duty to enforce. Moreover, discretion is inherent in executive functions, especially prosecutions--the DA possesses some discretion on which cases to bring and when. So even the clearest connection between an official and a particular statute runs aground on that inherent discretion.

• The promise not to enforce is even more problematic. Whether an official will enforce a law is part of justiciability (especially standing); the court now imports that into EpY, exacerbating the conflation of these concepts. Even if this should be part of EpY, the analysis is circular. Ogg promised not to enforce while litigation is pending. But if that promise gets the target defendant out of the suit, the plaintiff has no one to proceed against in the EpY action--the promise not to enforce until the end of litigation ends the litigation.

• The promise not to enforce may not control if plaintiff's can point to enforcement history (again importing a piece of standing analysis). But the court emphasizes that Ogg had no history of enforcement because plaintiffs filed suit less than a week after the law took effect, leaving Ogg no opportunity to do that. The lesson: Do not pursue offensive litigation too quickly. Stated differently, if you use EpY too quickly, your EpY action will fail because the target defendant never enforced the law.

• The court cites Whole Woman's Health for the proposition that rightsholders are not entitled to bring pre-enforcement EpY challenges to all laws and that some constitutional rights must be asserted defensively. But WWH bars an EpY action against state officials who have no authority or obligation to enforce a challenged law that is subject purely to private enforcement; it does not purport to narrow EpY or to limit the right to bring pre-enforcement challenges to publicly enforced laws. And while some rights in some circumstances must be litigated defensively, a Fourteenth Amendment challenge to a criminal law has never been one of them. At the same time, the court adopts a cribbed reading of the part of WWH that allowed medical professionals' claims against the licensing boards; it refused to credit as binding the fractured views of two four-person opinions.

So at least in the Fifth Circuit, rightsholders cannot pursue offensive pre-enforcement litigation against a law unless that law expressly imposes a non-discretionary duty to enforce on a specific official, the official does not agree to withhold enforcement until the end of the case, and the official has had time to enforce in the past and build a record of intention to enforce.

EpY aside, the case features some interesting appellate jurisdiction issues. Ogg appealed the denial of her sovereign immunity defense, which is generally subject to COD review. But plaintiffs asserted claims under the Rehabilitation Act, Voting Rights Act, and Americans With Disabilities Act, all of which (or at least arguably are--the court played coy as to all but the VRA) abrogate sovereign immunity; they argued that immediate review was improper here, since the case would not end if the court of appeals reversed and found sovereign immunity. The court also considered, but declined, to exercise pendent appellate jurisdiction over the question of the plaintiffs' standing; Ogg argued that because standing and EpY turn on the same issues, the court should consider all.

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

The end of the "obvious alternative explanation" on 12(b)(6)?

The idea of an "obvious alternative explanation"--introduced in Twombly and reified in Iqbal--does not fit the 12(b)(6) analysis. If all reasonable inferences must be drawn in the plaintiff's favor, it is incoherent to credit an alternative explanation; that requires drawing inferences for the defendant and rejecting as implausible those inferences for the plaintiff. That is, if the AG orders the arrest of thousands of Arab Muslim men from Middle Eastern countries in the months after 9/11, saying it is more plausible that he was motivated by a desire to protect the country rather than animus is to draw inferences for the defendant and against the plaintiff.

And it confuses students. Despite my emphasizing that it dropped out of the analysis for most lower courts, students run to it as part of the analysis. Worse, they use it as a basis to suggest different facts. ("The plaintiff alleged X, but a more obvious explanation is that unalleged Y is true, therefore complaint dismissed.").

On a day in which public attention focused on other legal matters, perhaps NRA v. Vullo interred "obvious alternative explanation" in the 12(b)(6) analysis. The NRA alleged the head of the state insurance regulator threatened to take (or promised to refrain from taking) unrelated regulatory actions against the companies if they cease doing business with the NRA. The state argued that the agency engaged in government speech in its press releases and that in meeting with insurers, the agency exercised regulatory authority to pursue violations and to offer leniency to resolve enforcement actions. But the Court could not "simple credit" the argument that "we're just enforcing the law" as an obvious alternative explanation, in light of other allegations taken as true and the obligation to draw favorable inferences for the plaintiff.

This may not mark any sea change in the Twiqbal analysis. The Court (including the liberal justices) may be more solicitous of the NRA's free speech claims than of 9/11-detainees' equal-protection claims during a national-security crisis or consumers' antitrust claims, and thus less solicitous of New York's obvious alternative explanations than of John Ashcroft or Bell Atlantic. The Court also does not follow obvious alternative to its real point of favorable inferences--"we cannot credit defendant's suggested inference from the alleged facts at this time." Instead, the moves to the need to accept pleaded facts as true, subject to what discovery may show those real facts to be. That is a different point.

Nevertheless, NRA at least offers plaintiffs a new argument that a court cannot grant a 12(b)(6) and dismiss a claim by accepting the defendant's best explanation for the facts alleged over the plaintiff's best explanation for those facts, where both explanations are independently plausible.

Erie and the source of multi-part tests

Here is an under-discussed Erie problem: Whether, and how to analyze whether, a federal court must apply an atextual judicially created multi-factor balancing test over contrary state law. I thought of it in looking at this Third Circuit case that Eugene flagged. I wondered what courts had done in diversity cases and found this 2021 New Mexico case in which plaintiffs urged the court to apply the state near-absolute guarantee of anonymity in sexual abuse cases rather than the federal multi-factor balancing. The court's analysis, in language that would fail my Civ Pro exam, came in a footnote:

The Court rejects Plaintiffs’ request for “deference to the State of New Mexico's judicial system's ‘blanket finding’ that childhood sexual abuse survivors be permitted to remain anonymous until their trials.” Doc. 33 at 4. When exercising its diversity jurisdiction, this Court must apply New Mexico substantive law. See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). But this mandate does not allow Plaintiffs to argue that this Court should defer to a state court procedural practice. Federal courts are bound to follow federal procedural law. Hanna, 380 U.S. at 465 (1965).

This case and the general problem provided two insights on Erie.

First, when courts make the "federal courts apply federal procedural law" move, they mean federal courts apply the FRCP or other statutorily created procedural law. That is the lesson of Hanna--the Erie doctrine does not act as a "check" on the FRCP. But Hanna requires a different approach (and perhaps conclusion, although not in Hanna itself) when the federal rules--including procedural laws--derives from a source other than the FRCP. Courts have unfortunately (and inaccurately) short-handed the analysis. But I think that is the idea they are getting at.

Second, courts have not identified clear rules for determining when an atextual judicial gloss derives from sparse statutory text (and thus becomes part of the text) and when it reflects judge-made common law. That distinction determines whether the federal standard certainly applies under the REA (because no federal rule is invalid) or whether the court performs a far less certain "relatively unguided Erie" analysis that is more likely to require it to apply state law. This was the point of departure between Ginsburg's majority and Scalia's partial dissent in Gasperini--whether the judicially created "seriously erroneous result"/"miscarriage of justice" standard for new trials derived from an interpretation of FRCP 59(a) (Scalia) or whether the courts created it to fill statutory gaps (Ginsburg). But neither explained why their preferred understanding was correct. But it is not always obvious. Why is Twiqbal plausibility an interpretation of FRCP 8(a)(2) while the four-part Winter test for a preliminary injunction is a stand-alone test independent of FRCP 65? (the latter one is historical and predates the FRCP, but the point stands).

Although not explicit and not framed in these terms, courts seem to understand the multi-factor balance for pseudonymity as an interpretation and thus part of FRCP 10(a), which requires that the case caption include the party names. The Third Circuit explained: 1) "Rule 10(a) requires parties to a lawsuit to identify themselves in their respective pleadings" and 2) "[w]hile not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously." It follows (although the court did not say this much) that the balancing of nonexhsaustive competing interests for and against anonymity implements FRCP 10. Again, however, it is not obvious why this is the case.

So how should the District of New Mexico have resolved the plaintiff's argument for applying the more plaintiff-friendly pseudonymity rule, beyond "we must apply federal procedure." It should have said that under the Rules of Decision Act, FRCP 10(a), as interpreted through the multi-factor balancing, constitutes an Act of Congress that "otherwise requires or provides" and serves as the rule of decision; as interpreted, it is sufficiently broad to answer the question of when a plaintiff can proceed pseudonymously. The court then should have analyzed whether the rule was valid under § 2072--whether it really regulates procedure and whether it does not abridge, enlarge, or modify a substantive right. The answer would be "yes, it is valid," because every FRCP is valid. But the substantive policies underlying state law (protecting the privacy of sexual-assault victims and encouraging them to come forward) would have forced the court to either rely on "incidental effects" on substantive rights being permissible or adopt the Scalia view that a procedural rule never, in any meaningful sense, can AEM. Either way, that analysis is a lot more complicated than the footnote allows.

And what if the multi-factor test were not part of FRCP 10? The unguided Erie analysis must consider whether ignoring state law would cause the "character or result" to differ, whether a party might go to federal court to avoid less favorable state law, and whether the state law is "bound up" with substantive policy. That analysis usually points towards state law and probably would here--a defendant might remove to avoid automatic pseudonymity and the state law has underlying substantive concerns.

But this example shows why "apply federal procedure," without more, cannot be the extent of the analysis. A litigant-name rule is unquestionably "procedural"--it relates to the manner and means through which rights are enforced in court. But if the conflict with state law comes from a federal legal rule unmoored from the FRCP, the federal court may be required to apply that state law.

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.